Karnataka High Court
Viji @ Vijaya vs State Of Karnataka By on 2 March, 2022
Bench: B.Veerappa, S Rachaiah
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CRL.A No. 1264 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO. 1264 OF 2018
BETWEEN:
1. VIJI @ VIJAYA,
S/O LATE AMAN,
AGED ABOUT 28 YEARS,
R/AT NO.BANNIMANTAPA INDUSTRIAL AREA,
VANDE-MATARAM NAGARA,
MYSURU.
(IN JUDICIAL CUSTODY)
...APPELLANT
(BY SRI. SURESH H S., ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
MANDI TOWN P.S.,
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
Digitally signed by
GAVRIBIDANUR HIGH COURT OF KARNATAKA,
SUBRAMANYA GUPTA
SREENATH BENGALURU-560001.
Location: High Court of
Karnataka
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 03/07.08.2017 MADE IN S.C.NO.208/2014
ON THE FILE OF IV ADDITIONAL SESSIONS JUDGE, MYSURU,
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CRL.A No. 1264 of 2018
CONVICTING AND SENTENCING THE APPELLANT/ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND
506 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., MADE THE FOLLOWING:
JUDGMENT
The appellant/accused filed the present criminal appeal
against the judgment of conviction and order of sentence dated
3/7-08-2017 made in S.C. No.208/2014 on the file of the IV
Addl. Sessions Judge, Mysuru, convicting and sentencing him
for the offences punishable under Sections 302 and 506 of IPC.
By the impugned judgment, the trial Court sentenced the
appellant/accused to undergo imprisonment for life and to pay
fine of Rs.5,000/- for the offence punishable under Section 302
of IPC and to undergo Simple Imprisonment for one year and to
pay fine of Rs.1,000/- for the offence punishable under Section
506 of IPC, with default sentences.
2. It is the case of the prosecution that on 04.08.2013
at about 5.45 p.m. at Bannimantapa Industrial layout, towards
western side of Soap Godown No.45, in front of the house i.e.,
shed of PW1 and deceased Raju, when they were sitting, at
that time, the accused Viji @ Vijaya came there, picked up
CRL.A No. 1264 of 2018
quarrel with deceased Raju for non-payment of coolie amount.
Though PW1 tried to restrain the accused stating that the
amount would be paid on the next day, the accused without
listening to her words, forcibly pushed the deceased, as a
result, he fell down near the door. Then, the accused took a
big size stone and put on the head of the deceased Raja 2-3
times, caused crush injuries and committed the murder of the
deceased at the spot. The accused also threatened PW.1 with
dire consequences if she informs the incident to any other
person and fled away from the spot. Thereafter, PW.1 lodged
the complaint to the jurisdictional Police. The jurisdictional
police registered the case in Crime No.170/2013 for the
offences punishable under the provisions of Sections 302 and
506 of IPC. After completion of the investigation, the
Investigating Officer filed the charge sheet against the accused
for the aforesaid offences. The matter was committed to the
learned Sessions Judge. After committal of the matter, the
learned Sessions Judge secured the presence of the accused
and framed charge and read over and explained to the accused
in the language known to him, who pleaded not guilty and
claimed to be tried.
CRL.A No. 1264 of 2018
3. In order to establish the guilt of the accused, the
prosecution in all examined 10 witnesses as PWs.1 to 10, got
marked 17 material documents - Exs.P1 to P17 and nine
material objects - M.Os.1 to 9.
4. After completion of evidence of prosecution witnesses,
the statement of the accused was recorded as contemplated
under the provisions of Section 313 of the Code of Criminal
Procedure. The accused denied all the incriminating evidence
adduced against him and also the case set up by the
prosecution and not chosen to lead any defence evidence.
5. Based on the aforesaid pleadings and the material on
record, the learned Sessions Judge framed two points for
consideration, which are as under:
1. Whether the prosecution proves beyond
reasonable doubt that, on 4.8.2013, at about 5.45
p.m., at Bannimantap Industrial Layout, towards
western side of Soap Godown No.45, in front of the
house of this CW 1, the accused came there, picked
up quarrel on the background of non-payment of
coolie amount with an intention to commit murder
of deceased Raju and slapped and picked up a big
size stone and put on the head of deceased Raju at
CRL.A No. 1264 of 2018
2 or 3 times and caused crushed head injury and
thereby, committed murder of deceased Raju and
thereby, committed an offence punishable under
Section 302 of IPC?
2. Whether the prosecution further proves
beyond reasonable doubt that, after committing
murder of deceased Raju, the accused has also
committed criminal intimidation by threatening to
cause death of CW 1 if she informs about this
incident to any other person and thereby,
committed an offence punishable under Section
506 of I.P.C.?
[ 6. Considering both the oral and documentary evidence
on record, the learned Sessions Judge answered both the
points in the affirmative holding that the prosecution proved
beyond reasonable doubt that the accused committed the
offences punishable under Sections 302 and 506 of IPC.
Accordingly, the learned Sessions Judge by the impugned
judgment of conviction and order of sentence, has convicted
the accused for the offences punishable under Sections 302 and
506 of IPC and sentenced him to undergo imprisonment for life
and to pay fine of Rs.5,000/- for the offence punishable under
Section 302 of IPC and to undergo simple imprisonment for one
CRL.A No. 1264 of 2018
year and to pay fine of Rs.1,000/- for the offence punishable
under Section 506 of IPC. Hence, the present criminal appeal
is filed.
7. We have heard the learned counsel for the parties.
8. Sri Suresh, learned counsel for the appellant/accused
contended with vehemence that the impugned judgment of
conviction and order of sentence passed by the trial Court
convicting and sentencing the accused for the offences
punishable under Sections 302 and 506 of IPC, is erroneous
and contrary to the material on record and liable to be set
aside. He would further contend that the learned Sessions
Judge proceeded to convict the accused mainly on the basis of
evidence of PW.1, who claims to be wife of the deceased and
the same cannot be looked into, as she is interested witness.
He would further contend that the dispute between the
accused and the deceased was with regard to non-payment of
coolie amount by the deceased to the accused. There is no
corroborative material in support of evidence of PW.1 and there
is no motive for commission of murder of the deceased. He
would further contend that there is no direct evidence by the
CRL.A No. 1264 of 2018
deceased and the prosecution not proved the case beyond
reasonable doubt. Therefore, he sought to allow the appeal
by setting aside the impugned judgment of conviction and
order of sentence.
9. Alternatively, he argued that even assuming that the
entire material available on record taken into consideration as
proved for the sake of argument, the case would fall under
Section 304 Part I of IPC and not under Section 302 of IPC.
There was no intention on the part of the accused and both the
accused and the deceased were friends and were doing coolie
work. There was verbal altercation between the accused and
the deceased on the relevant day. There is no premeditation to
cause death of the deceased and it was happened suddenly in
the heat of passion when the accused demanded coolie amount
from the deceased. Therefore, this is a case which clearly falls
under the provisions of Section 304 Part I of IPC and not under
Section 302 of IPC and sought to modify the impugned
judgment of conviction accordingly by allowing the appeal.
10. Per contra, Sri Vijaykumar Majage, learned Addl. SPP
while justifying the impugned judgment of conviction and order
CRL.A No. 1264 of 2018
of sentence, has contended that Ex.P1 - complaint coupled
with the evidence of PW.1, who claims to be the wife of the
deceased clearly depict that there was dispute between the
accused and the deceased with regard to non-payment of coolie
amount by the deceased to the accused and on the relevant
day, the accused came with an intention to cause death of the
deceased. When the deceased refused to pay the coolie
amount, accused forcibly pushed the deceased, as a result, he
fell down near the door and then, the accused took a big size
stone and put on the head of the deceased Raja 2-3 times,
caused crush injuries and committed the murder of the
deceased at the spot and threatened PW.1 with dire
consequences if she informs the incident to any other person.
He would further contend that the Investigating Officer
recovered MOs.1 to 4 under Ex.P2 - spot mahazar and MOs.5 to
9 under Ex.P13 - seizure mahazar. In the circumstances, the
prosecution proved beyond reasonable doubt that it is the
homicidal death of the deceased at the instance of the accused,
thereby the learned Sessions Judge is justified in convicting the
accused for the offences punishable under Sections 302 and
506 of IPC. Therefore, he sought to dismiss the appeal.
CRL.A No. 1264 of 2018
11. In view of the aforesaid rival contentions urged by
the learned counsel for the parties, the only point that would
arise for our consideration in the present criminal appeal is:
"Whether the appellant/accused has made
out a case to interfere with the impugned judgment
of conviction and order of sentence passed by the
trial Court convicting and sentencing the
appellant/accused for the offences punishable
under Sections 302 and 506 of IPC, in the facts and
circumstances of the case ?
12. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire material including the original records
carefully.
13. This Court being the appellate Court in order
to re-appreciate the entire material on record, it is relevant to
consider the evidence of the prosecution witnesses and the
documents relied upon:-
i) PW.1 - Mary Rajina deposed that the deceased Raja was
her husband and they were residing in Vande Matharam
town in a shed near cement godown at the relevant
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CRL.A No. 1264 of 2018
point of time. She further deposed that the deceased
Raju was loader in the cement lorry and she was doing
coolie work. On the relevant day, when they were sitting
together in front of their house, the accused came there
and demanded coolie amount and when the deceased
stated that he has no money with him, the accused
provoked and scolded the deceased and pulled down,
thereby the deceased fell near the door. When she
intervened, she was also pushed. Thereafter, the
accused took a big size stone and put on the head of the
deceased 2-3 times, caused crush injuries and the
deceased died at the spot. When she screamed, he has
threatened her not to intimate the incident to anybody.
Thereafter, she lodged the complaint as per Ex.P1. She
identified MO.1 - size stone, MO.2 - blood splashed on
the spot, MO.3 - blood stained mud, MO.4 - sample mud
under Ex.P2 - spot mahazar. She supported the case of
the prosecution. She has denied the suggestion that
she has given false statement about the assault on the
deceased by the accused. Nothing has been elicited in
her cross-examination to disbelieve her statement about
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CRL.A No. 1264 of 2018
the homicidal death of the deceased. She supported the
case of the prosecution.
ii) PW.2 - Chandrappa, who is the witness to the spot
mahazar - Ex.P2 has turned hostile to the case of the
prosecution.
iii) PW.3 - Davood Shariff is also one of the witness to the
spot mahazar. He has stated that the Police have not
seized any weapon in his presence. He partly supported
the case of the prosecution.
iv) PW.4 - Manjula, who is the daughter of 1st wife of the
deceased is the hear say witness to the case of the
prosecution. She deposed that she came to know that
the accused has killed her father for non-payment of
coolie amount. She admitted that her father was in the
habit of taking drinks. She denied the suggestion that
after taking drinks, there used to be fight between the
deceased and PW.1 and on account of the quarrel
between the deceased and PW.1 under the influence of
alcohol, deceased fell down on the floor. She denied
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CRL.A No. 1264 of 2018
that she has been tutored. She supported the case of
the prosecution.
v) PW.5 - Kumara is the witness to the inquest mahazar -
Ex.P5. He supported the case of the prosecution.
Nothing has been elicited in his cross-examination to
disbelieve his statement.
vi) PW.6 - Dr. Chandrashekar is the doctor who conducted
post-mortem examination on the dead body of the
deceased and submitted the post-mortem report as per
Ex.P5. He stated that the injuries sustained by the
deceased are before death. He supported the case of
the prosecution.
vii) PW.7 - Arjuna not related to the accused or the
deceased. He deposed that he knows the deceased, but
not seen the accused and is not aware of dispute
between the two. He has turned hostile to the case of
the prosecution.
viii) PW.8 Shabbir Hussain is the PSI, who registered the
case in Crime No.170/2013 for the offences punishable
under Sections 302 and 506 of IPC on the basis of the
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CRL.A No. 1264 of 2018
complaint - Ex.P1. Nothing has been elicited in his
cross-examination to disbelieve the statement made by
him on oath.
ix) PW.9 - Rajanna has received the complaint - Ex.P1 from
the complainant and conducted spot mahazar - Ex.P2
and inquest mahazar - Ex.P4. After completion of
investigation, he filed the charge sheet against the
accused.
x) PW.10 - Manjuantha is the witness to the seizure
mahazar. He identified Ex.P13 and Ex.P14. He turned
hostile to the case of the prosecution.
Based on the aforesaid material on record, the learned
Sessions Judge proceeded to convict the accused for the
offences punishable under Sections 302 and 506 of IPC.
14. The gist of the complaint - Ex.P1 lodged by PW.1 is
that she has two husbands and her 1st husband - Babu has
died and she was living with her 2nd husband - deceased Raju
at the relevant point of time at Vande Mataram town in a shed
near cement godown and her husband was a loader in the
cement lorry. Both herself and the deceased Raju used to go
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CRL.A No. 1264 of 2018
for coolie work in the morning and come back after finishing
dinner at about 5.00 p.m. to the shed. The deceased used
to earn Rs.300/- to Rs.600/- per day as daily wages and she
used to earn Rs.150/- per day. On 4.8.2013 at about 5.45
p.m., when herself and the deceased were sitting in front of
their house (shed), the accused, who is friend of the deceased
came and demanded coolie amount and when the deceased
refused to pay the coolie amount, there was quarrel between
the accused and the deceased. Though PW.1 tried to restrain
the accused stating that the amount would be paid on the next
day, the accused without listening to her words, forcibly
pushed the deceased, as a result, he fell down near the door.
Then, the accused took a big size stone and put on the head of
the deceased 2-3 times, caused crush injuries and committed
the murder of the deceased at the spot and threatened PW.1
with dire consequences if she informs the incident to any other
person and thereafter fled away from the spot.
15. It is not in dispute that the doctor (PW.6), who
examined the deceased and issued the post-mortem report -
Ex.P5 has stated that right half of the head of the deceased is
completely crushed with fracture of the skull including base of
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CRL.A No. 1264 of 2018
the skull into multiple pieces, underlying brain is crushed and
drained out with effusion of blood and opined that death is due
to shock and haemorrhage as a result of crush injury of the
head sustained. The evidence of PW.1 coupled with the
evidence of the doctor - PW.6 clearly depict that the death of
the deceased was homicidal. There is no dispute with regard
to homicidal death of the deceased.
16. The complaint - Ex.P1 is supported by the evidence
of PW.1. There are no eye witnesses to the incident except
PW.1, who is a natural witness. The dispute is only with regard
to non-payment of coolie amount by the deceased to the
accused. As per the complaint - Ex.P1 and the evidence of
PW.1, who claims to be the wife of the deceased, there is no
whisper of quarrel between the accused and the deceased
earlier and for the first time, it happened between them when
the deceased refused to pay the coolie amount demanded by
the accused. The material on record clearly depicts that the
deceased and accused were friends and the accused was living
on daily wages and when the deceased refused to pay the
coolie amount, which the accused is legally entitled, there was
verbal altercation and the accused pushed the deceased, as a
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CRL.A No. 1264 of 2018
result the deceased fell down near the door. The accused lost
self control by grave and sudden provocation and put the stone
- MO.1 on the head of the deceased and caused the death of
the deceased. The said overt act of accused without there
being any pre-meditation and without there being any sketch or
pre-concept, cannot be traced to the offence punishable under
Section 302 of IPC. However, since assault was sufficient
enough to take away the life of the deceased, the action
attributable to accused can be traced into Exception - 1 of
Section 300 of IPC, which reads as under:
"Section 300: Murder:
xxx xxx
xxx xxx
Exception I - When culpable homicide is not
murder.-- Culpable homicide is not murder if the
offender whilst deprived of self-control by grave and
sudden provocation, causes the death of the person
who gave the provocation or causes the death of
any other person by mistake or accident."
17. A careful perusal of the said provision makes it clear
that culpable homicide is not murder if the offender whilst
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CRL.A No. 1264 of 2018
deprived of self-control by grave and sudden provocation,
causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident.
The evidence of PW.1 and other witnesses clearly depict the
socio-economic condition of the appellant, as a person below
poverty line as he was doing coolie work and the same can
also be considered as one of the mitigating factors, while
balancing the aggravating and mitigating factors. In the
present case, the accused ekes out his livelihood by doing
coolie work on daily wages and when the deceased refuses to
pay the coolie amount, which the accused entitled to, naturally
there was verbal altercation and the accused lost self control
by grave and sudden provocation and the incident occurred
suddenly in the heat of passion and there is no premeditation
to cause death of the deceased. Therefore, it amounts to
culpable homicide not amounting to murder. Considering the
entire material on record, we are of the considered opinion
that it is a fit case to convict the accused under the provisions
of Section 304 Part I of IPC and sentence him to undergo
imprisonment for ten years and not under the provisions of
Section 302 of IPC. The said material has not been considered
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CRL.A No. 1264 of 2018
by the learned Sessions Judge while convicting the accused for
the offence punishable under Section 302 of IPC.
18. PW.1 specifically stated in the complaint - Ex.P1 that
the accused threatened her with dire consequences if she
informs the incident to any other person. However, the
accused has not taken any defence except total denial in the
statement recorded under the provisions of Section - 313 of the
Code of Criminal Procedure. Considering the entire material on
record, we are of the considered opinion that the prosecution
proved beyond reasonable doubt that the accused committed
the offence punishable under Section 506 of IPC and the trial
Court rightly convicted the accused for the said offence.
19. On re-appreciation of the entire material on record,
we answer the point raised in the present criminal appeal
partly in the affirmative holding that the impugned judgment
of conviction and order of sentence passed by the trial Court
calls for modification and the impugned judgment convicting
the appellant/accused for the offence punishable under Section
302 of IPC has to be modified and altered into one under
Section 304 Part I of IPC and the appellant/accused shall be
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CRL.A No. 1264 of 2018
sentenced to undergo Rigorous Imprisonment for a period of
ten years with a fine of Rs.10,000/-, in default of payment of
fine to under Simple Imprisonment for a period of two years.
However, the impugned judgment of conviction and order of
sentence passed by the trial Court in so far as convicting the
accused for the offence punishable under Section 506 of IPC
and sentencing him to undergo imprisonment for one year with
fine of Rs.1,000/-, is hereby confirmed.
20. In view of the above, we pass the following:
ORDER
i) The Criminal Appeal filed by the
appellant/accused is allowed in part.
ii) The impugned Judgment of conviction and
order of sentence dated 03/07-08-2017 made
in S.C. No.208/2014 on the file of the IV Addl.
Sessions Judge, Mysuru, convicting the
appellant - accused for the offence punishable
under Section 302 of IPC and sentencing him
to undergo imprisonment for life and to pay
fine of Rs.5,000/- is hereby modified and the
appellant/accused is convicted for the offence
punishable under Section 304 Part I of IPC
and sentenced to undergo Rigorous
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CRL.A No. 1264 of 2018
Imprisonment for a period of TEN YEARS and
to pay a fine of Rs.10,000/- (Rupees ten
thousand only), in default to undergo further
Simple Imprisonment for a period of two
years.
iii) The impugned judgment of conviction and
order of sentence passed by the trial Court in
so far as convicting the appellant/accused for
the offence punishable under Section 506 of
IPC and sentencing him to undergo
imprisonment for one year and to pay fine of
Rs.1,000/-, is hereby confirmed.
iv) Both the sentences shall run concurrently.
v) The appellant - accused is entitled to the
benefit of set off as contemplated under the
provisions of Section 428 of the Code of
Criminal Procedure.
vi) In exercise of the powers under Section
357(3) of the Code of Criminal Procedure, we
direct that if the fine amount of Rs.10,000/- is
deposited, out of the said amount, a sum of
Rs.9,000/- (Rupees nine thousand only) shall
be paid to PW.1 - Mary Rajina and the balance
amount of Rs.1,000/- shall vest with the State
Government towards the defraying expenses.
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CRL.A No. 1264 of 2018
vii) In view of disposal of the criminal appeal, I.A.
No.1/2022 for suspension of sentence and bail,
does not survive for consideration and it is
accordingly disposed off.
viii) Registry is directed to return the Trial Court
Records along with copy of this judgment.
Ordered accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
Gss/-
